holding that before granting a mistrial, “the court should always consider whether the giving of a curative instruction or some alternative less drastic than a mistrial is appropriate.”
How later courts described this case
- holding that before granting a mistrial, “the court should always consider whether the giving of a curative instruction or some alternative less drastic than a mistrial is appropriate.”
- stating that "before granting a mistrial, the court should always consider whether the giving of a curative instruction or some alternative less drastic than a mistrial is appropriate."
- including as part of Allen charge that “if you are in the minority on the Jury, listen to the views of the majority; and if you’re on the majority on the Jury, you listen to the views of the minority”
- “Before granting a mistrial, the court should always consider whether the giving of a curative instruction or some alternative less drastic than a mistrial is appropriate.”
Written by the judges who cited it.
The opinion
WIDENER, Circuit Judge,
concurring.
I concur in the result and in all of the majority opinion except part II thereof, which is with respect to the Allen type charge.
While I agree with the reasoning of the dissent as to the correctness of the charge given, I note there was no objection made to the charge (the only objection being to a matter not connected with the principal object of the charge). For the reason that no objection was made I would not reverse but have voted to affirm.
WINTER, Chief Judge, with whom Judges RUSSELL, SPROUSE and ERVIN join, concurring in part and dissenting in part.
We see no merit in defendant’s appeal except with regard to the district court’s gratuitous, unbalanced Allen charge. As said in the panel dissenting opinion, we think that this charge was coercive and upset the fine balance of the approved Allen charge that we have prescribed for this circuit:
When the jury was told that a case is always tried best the first time that it is tried, the lawyers and witnesses do a better job in a first trial, and it is more likely that the jurors will get the true facts in a first trial ... the admonition not to give up a firm conviction was seriously undercut. The jurors were told, in effect, that, if the truth was ever to be known, they must agree on a verdict, whatever their individual convictions.
United States v. Martin, 740 F.2d 299, 304 (4 Cir.1984) (emphasis in original).
We would reverse and grant a new trial.